The Miss United States Pageant is protected under its First Amendment rights and cannot be forced to include transgender contestants, judges ruled Wednesday.
The 9th U.S. Circuit Court of Appeals ruled that the beauty pageant organization may exclude transgender contestants through the enforcement of its rule providing that only “natural born” women may compete.
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A lawsuit was brought against the Miss United States Pageant in 2019 by Anita Green, a transgender woman who was born male. The pageant had rejected Green’s application based on gender identity.
Green’s lawsuit, which was filed in Oregon, said the pageant “committed an intentional act of discrimination by adopting an express discriminatory policy.”
A federal judge had dismissed the case last year, citing the pageant’s decision fell within its free speech rights. On Wednesday, the three-judge appeals court panel agreed, ruling that the forced participation of transgender females infringes on the pageant’s right and ability to express “the ideal vision of American womanhood.”
“Miss United States of America expresses its message in part through whom it chooses as its contestants, and the First Amendment affords it the right to do so,” wrote Circuit Judge Lawrence VanDyke, an appointee of former President Donald Trump. “Given a pageant’s competitive and performative structure, it is clear that who competes and succeeds in a pageant is how the pageant speaks.”
Joining VanDyke in the majority decision was Circuit Judge Carlos Bea, an appointee of former President George W. Bush.
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In the dissenting opinion, Circuit Judge Susan Graber wrote that the ruling overlooked whether Oregon’s nondiscrimination law was at all applicable to the case and instead moved on to considering “constitutional issues.” Graber noted that she must dissent given that the case “cannot prevail on the merits of an as-applied First Amendment claim.”
Green previously said in a statement to the Hill that the Miss United States Pageant is “on the wrong side of history,” calling for transgender women to be known as women. “Every person has beauty.”
